Jessee v. Barnhart, Civ.A.H 04 4278.

• Decision Date: 03 March 2006
• Docket Number: No. Civ.A.H 04 4278.,Civ.A.H 04 4278.
• Citation: 419 F.Supp.2d 919
• Parties: Rodger A. JESSEE, Plaintiff, v. Joanne B. BARNHART Commissioner of the Social Security Administration, Defendant.
• Court: U.S. District Court — Southern District of Texas

419 F.Supp.2d 919

Rodger A. JESSEE, Plaintiff, v. Joanne B. BARNHART Commissioner of the Social Security Administration, Defendant.

No. Civ.A.H 04 4278.

United States District Court, S.D. Texas, Houston Division.

March 3, 2006.

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Louis Val Salmon, The Hardy Law Firm, Houston, TX, for Plaintiff.

Kerry J. Simpson, U.S. Atty's Off. Special Assistant U.S. Atty, Dallas, TX, for Defendant.

MEMORANDUM AND ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

STACY, United States Magistrate Judge.

Before the Court¹ in this social security appeal is Defendant's Motion for Summary Judgment (Document No. 13), Plaintiff's Motion for Summary Judgment (Document No. 16), and Defendant's Reply thereto (Document No. 19). Having considered the cross motions for summary judgment, the administrative record, and the applicable law, the Court ORDERS, for the reasons set forth below, that Defendant's Motion for Summary Judgment (Document No. 13) is DENIED, that Plaintiffs Motion for Summary Judgment (Document No. 16) is GRANTED, and that the decision of the Commissioner is REMANDED for further proceedings.

I. Introduction

Plaintiff Rodger A. Jessee ("Jessee") brings this action pursuant to Section 205(g) of the Social Security Act ("Act"), 42 U.S.C. 405(g), seeking judicial review of a final decision of the Commissioner of Social Security Administration ("Commissioner") denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). Jessee argues that substantial evidence does not support the ALJ's decision, and that the ALJ, Philip R. Kline, committed errors of law when he found that Jessee retained the residual functional capacity ("RFC") for sedentary work, that Jessee could perform his past relevant work as an inside salesperson, and that he was therefore, not disabled. Jessee contends that the ALJ failed to apply the appropriate legal standards and that substantial evidence does not support the ALJ's decision. According to Jessee, the ALJ erred by failing to articulate a legitimate basis for discounting his impairments of status post cervical fusion and headaches at steps three and four, and by finding him capable of performing his past relevant work given that he lost his previous job due to excessive absenteeism caused by pain in his neck, arm and headaches. Jessee moves the Court for an order reversing the Commissioner's decision and awarding benefits, or in the alternative, an order remanding his claim for further proceedings. The Commissioner responds that there is substantial evidence in the record to support the ALJ's decision that Jessee was not disabled as a result of his impairments, the decision comports with applicable law, and that it should therefore be affirmed.

II. Administrative Proceedings

Jessee applied for DIB and SSI benefits on July 17, 2002, claiming that he has been unable to work since June 18, 2002, due to a fusion of the cervical spine and headaches. (Tr. 64-66, 204-206). The Social Security Administration denied his applications at the initial and reconsideration stages. (Tr. 29A-43, 207-18). After that, Jessee requested a hearing before an ALJ. (Tr. 44-45). The Social Security Administration granted his request (Tr. 46-48) and the ALJ held a hearing on March 10, 2004, at which Jessee's claims were considered de novo. (Tr. 227-274). On April 7, 2004, the ALJ issued his decision finding Jessee not disabled. (Tr. 5-18). The ALJ found that Jessee had not engaged in substantial gainful activity since the alleged onset of disability. At steps two and three, he found that Jessee had status post cervical fusion and headaches, which are severe impairments within the meaning of the Act, but that these impairments did not meet or equal the requirements of a listed impairment. Based on the medical records, the testimony of Jessee, the testimony of a medical expert who specializes in neurology, Woodrow Janese, M.D., and of a vocational expert, Emma Vasquez, the ALJ concluded that Jessee's complaints were not totally credible, that he had the residual functional capacity ("RFC") to perform sedentary work,² and that he could perform his past relevant work as an inside salesperson. Based on those findings, the ALJ determined that Jessee was not disabled within the meaning of the Social Security Act.

Jessee then asked for a review by the Appeals Council of the ALJ's adverse decision. (Tr. 3A-4, 219-26). The Appeals Council will grant a request to review an ALJ's decision if any of the following circumstances are present: (1) it appears that the ALJ abused his discretion; (2) the ALJ made an error of law in reaching his conclusion; (3) substantial evidence does not support the ALJ's actions, findings, or conclusions; or (4) a broad policy issue may affect the public interest. 20 C.F.R. §§ 404.970, 416.1470. After considering Jessee's contentions in light of the applicable regulations and evidence, the Appeals Council concluded, on August 16, 2004, that there was no basis upon which to grant Jessee's request for review. (Tr. 3A-3C). The ALJ's findings and decision thus became final. Jessee has timely filed his appeal of the ALJ's decision. 42 U.S.C. § 405(g). Both Jessee and the Commissioner have filed Motions for Summary Judgment (Document Nos. 13 & 15). This appeal is now ripe for ruling.

The evidence is set forth in the transcript, pages 1 through 274 (Document No. 8). There is no dispute as to the facts contained therein.

III. Standard for Review of Agency Decision

The court's review of a denial of disability benefits is limited "to determining (1) whether substantial evidence supports the Commissioner's decision, and (2) whether the Commissioner's decision comports with relevant legal standards." Jones v. Apfel, 174 F.3d 692, 693 (5th Cir.1999). Indeed, Title 42, Section 405(g) limits judicial review of the Commissioner's decision: "The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." The Act specifically grants the district court the power to enter judgment, upon the pleadings, and transcript, "affirming, modifying, or reversing the decision of the Commissioner of Social Security with or without remanding the case for a rehearing" when not supported by substantial evidence. 42 U.S.C. § 405(g). While it is incumbent upon the court to examine the record in its entirety to decide whether the decision is supportable, Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir.1979), the court may not "reweigh the evidence in the record nor try the issues de novo, nor substitute its judgment" for that of the Commissioner even if the evidence preponderates against the Commissioner's decision. Chaparro v. Bowen, 815 F.2d 1008, 1009 (5th Cir.1987); see also Jones v. Apfel, 174 F.3d 692, 693 (5th Cir.1999); Cook v. Heckler, 750 F.2d 391 (5th Cir.1985). Conflicts in the evidence are for the Commissioner to resolve. Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir.1992) (quoting Hemphill v. Weinberger, 483 F.2d 1137 (5th Cir.1973)).

The United States Supreme Court has defined "substantial evidence," as used in the Act, to be "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Substantial evidence is "more than a scintilla and less than a preponderance." Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir.1993). The evidence must create more than "a suspicion of the existence of the fact to be established, but no `substantial evidence' will be found only where there is a `conspicuous absence of credible choices' or `no contrary medical evidence.'" Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.1983).

IV. Burden of Proof

An individual claiming entitlement to disability insurance benefits under the Act has the burden of proving his disability. Johnson v. Bowen, 864 F.2d 340, 344 (5th Cir.1988). The Act defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A). The impairment must be proven through medically accepted clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). The impairment must be so severe as to limit the claimant in the following manner:

he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 423(d)(2)(A). The mere presence of an impairment is not enough to establish that one is suffering from a disability. Rather, a claimant is disabled only if she is "incapable of engaging in any substantial gainful activity." Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir.1992) (quoting Milam v. Bowen, 782 F.2d 1284 (5th Cir.1986)).

The Commissioner applies a five-step sequential process to determine disability status:

1. If the claimant is presently working, a finding of "not disabled" must be made;

2. If the claimant does not have a "severe" impairment or combination of impairments, he will not be found disabled;

3. If the claimant has an impairment that meets or equals an impairment listed in Appendix 1 of the Regulations, disability is presumed and benefits are awarded;

4. If the claimant is capable of performing past relevant work, a finding of "not disabled"...